QUESTION
If you recall,
I wrote you last year during the early part of the COVID-19 pandemic. Your
guidance was terrific. We purchased your Business Continuity Plan, which
provides a pandemic component.
Now, it looks like the pandemic is getting worse. Our management has a policy for remote work, so most of us are sheltering in place, as needed. We go to the office two days a week. Most of us are vaccinated, too.
But – and this is a big but! – some new hires are refusing to wear masks (let alone getting vaccinated).
Our management
requests the wearing of masks, but some of these newly hired individuals refuse
and, to make matters worse, a few of them are essential to working in the
office versus working remotely.
And almost all of them have admitted to being unvaccinated.
Employees are now refusing to sit in the same room with these unmasked people. Management is confused about how to ensure our safety under these circumstances.
So, now people will not show up at the office if management does not have a policy to protect us from unmasked and unvaccinated people – especially these new hires.
Our management is now planning to hire a large number of employees and is actively interviewing them. These candidates may or may not support the mask and vaccination rules. We are very concerned.
Is there something we can say or do under these circumstances?
Can we ask candidates to wear masks and get vaccinated before they are hired?
What can we do to avoid hiring people who insist on being unmasked and unvaccinated?
ANSWER
I understand your concerns. I think most of us do!
Let’s be blunt: people who are “vaccine hesitant” and “against taking the vaccine” are both “anti-vaxxers.” Even when the FDA approved a vaccine, many people remained anti-vaxxers. I realize that some people are misinformed about the vaccine. Hopefully, they will act not only for themselves and their families but also for their community's benefit.
Newly hired people who are anti-vaxxers and anti-maskers pose a significant health risk to other employees.
Our Business Continuity Plan – Checklist and Workbook does indeed include the Pandemic Response. And it’s free! Most companies then go on to the low cost purchase of our Business Continuity Plan.
You can request information about them HERE.
As to people being against wearing a mask, this shows that (1) they don’t understand the purpose of wearing the mask, (2) they understand the purpose and do not believe the facts, or (3) they understand the purpose and believe the facts but don’t care. When people don’t understand, they misunderstand. Then, they become the prey of unscrupulous elements in society.
To paraphrase Jonathan Swift, you can’t reason a man out of what he never reasoned himself into! Or, as Sydney Smith once said, “What has not been reasoned in, cannot be reasoned out.”
To some extent, a company acts as a microcosm of the larger community environment. Management can set a standard for workplace safety, or it will eventually be compelled to do so. A company's management does not necessarily need regulatory compliance; it only needs to see that its employees are not showing up in an unsafe work environment.
Just as there are laws against a hostile workplace, there are also regulatory mandates – such as those promulgated by OSHA – against an unsafe or hazardous workplace.
My suggestions should be reviewed with your company’s human resources department and an attorney with expertise in labor and employment law. The recommendations may touch on employment law (state and federal), HIPPA, OSHA, ADA, EEOC laws, and so forth.
All of these considerations reach very complex areas of the law. Consequently, you should consult with counsel to proceed carefully in effectuating any guidance concerning my suggestions. You should be guided by counsel with appropriate expertise. I am going to offer a few broad suggestions. Carrying them out requires considerable legal scrutiny.
Since your question involves candidates for hire, I will make some suggestions for your management to consider, assuming the candidates will be at-will employees.
I will focus my remarks on the candidates for hire.
The company may put a checkbox on the employment application that asks if the prospective employee has been vaccinated. There should be a statement that accommodation is available for bona fide religious or medical reasons, with documentation in support thereof. Checking the box certainly should not cause exclusion from employment consideration.
However, take note, some states and localities limit what an employer can ask about vaccination status. Indeed, some states prohibit an employer from asking anything about vaccination.
A qualified candidate should comply with the company’s vaccination requirements. A written policy regarding workplace safety should include pandemic safeguards, such as a requirement to be masked and vaccinated. The policy should clearly state where and under what conditions these safety measures must be implemented. The policy should be given to all employees.
According to a company's written policy, consider that the employment offer may be made contingent on proof of vaccination. Treat the contingency in the same way that a background and credit check are completed before formal approval. Because the offer letter contains a set of contingency requirements, it may avoid the candidate alleging that rejection was based an unwillingness to get vaccinated.
If the candidate does not pass a background check, credit check, and vaccination check, there may be a basis for withdrawing the offer of employment.
A company may have a policy that requires wearing a mask. But the candidate may reject that policy. I think such a response from a candidate should be disqualifying. But who should discuss that policy with the candidate? Certainly not the hiring manager! That is the job of human resources.
Hiring managers should be trained in what can or cannot be discussed with a candidate. Discussing vaccination status is best left to human resources to vet the candidate after the hiring interview. The hiring manager should not discuss it.
Jonathan Foxx, Ph.D., MBA
Chairman & Managing DirectorLenders Compliance Group
